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NY Court Upholds Social Distancing Policy Requiring Unvaccinated To Stay Out of School

Fairbanks School of Public Health and McKinney School of Law, Indiana University, Indianapolis.

This has been a big year for outbreaks of Vaccine-Preventable Illnesses (VPIs) in the United States. While we are only halfway through 2014, there have been more measles cases this year than we have seen since before 2000, when the Federal government officially declared the United States “measles free” (in other words: there are no more domestically-generated measles cases; all of our outbreaks are imported). We’ve also seen large mumps and whooping cough outbreaks. You can follow all the disease outbreak action, both here and worldwide, via the Council on Foreign Relations’ very cool interactive map.

States use their police power authority under the Constitution to try to minimize our risk of exposure to VPIs. First, every state requires that children demonstrate proof of immunization against many VPIs as a condition of entry into schools, preschools and day cares. States also permit exemptions to these laws – every state allows a child who may be medically susceptible to injury from vaccines to receive an exemption (with proper documentation of vulnerability), and most states allow parents to apply for an exemption based on either religious or broader philosophical grounds. A combination of factors, including: a nearly two decade trend of increasing numbers of families obtaining exemptions and clustering in particular communities (or avoiding vaccine requirements by taking advantage of law loopholes, such as if a state’s vaccine law does not cover private schools); waning effectiveness of vaccination protections over time (as has been seen with whooping cough); increased international travel facilitating ready reimportation of VPIs from abroad; and many more immunocompromised individuals living in our communities; have slightly weakened our overall protection against VPI outbreaks.

However, when an outbreak does occur, states may draw upon additional powers. In New York State, they have incorporated the concept of “social distancing” into their childhood immunization school laws. If a child is unvaccinated, and therefore more susceptible to being exposed to, and become a carrier and vector for, a highly infectious VPI, schools in New York state can require that that child stay out of school until the risk abates (note: link to amended regulation effective July 1, 2014). This, coupled with ready availability of vaccines, can help significantly reduce the potential spread of serious disease in a very vulnerable and tightly packed community.

It also is easy to see that having to keep a child out of school during an outbreak could potentially become burdensome — as a parent whose children this year had nearly a week of winter weather school closures, and another week or more of 2 hour school delays, I know first-hand the frustration of being told by a school that your child can’t go to school when you’d like them to. But is it unconstitutional or a violation of human rights?

In the case of Phillips v. City of New York (E.D.N.Y., June 5, 2014), a Brooklyn Federal District Court Judge upheld New York state’s school-based social distancing law and vaccination requirement over the challenge of three New York families.

As every state immunization law is slightly different, it is helpful to look at the specifics of the New York State law. In New York, exemptions from the school immunization law are available for “children whose parent, parents, or guardian hold genuine and sincere religious beliefs which are contrary” to the immunization requirement. In this case, the three parents had applied for, and were all initially granted, religious exemptions to the state immunization law. New York also is more rigorous than many states in how it enforces this regulation. Unlike many states, which merely require that parents submit a form, or perhaps asks for certain “magic words” be included in a letter of request, or asks that the exemption request form be notarized, New York allows its school officials to request additional documentation from parents to support their claim of “genuine and sincere” anti-vaccination beliefs. According to the court decision, the school district at some point had withdrawn its approval of the Phillips child’s religious exemption request.

Furthermore, as noted above, when an outbreak of a VPI occurs in a school, New York law draws upon its police power authority to enforce a social distancing policy to minimize the exposure of potentially vulnerable populations to VPIs. They do this by requiring that schools exclude unvaccinated children from attending school during outbreaks:

10 NYCRR part 66-1.10

66-1.10 Exclusion of susceptibles in event of disease outbreak.
(a) in the event of an outbreak of diphtheria, polio, measles, rubella, mumps in a school, the commissioner, may order the appropriate school officials to exclude from attendance all students without documentation of immunity, as specified in section 66-1.3(a) or (b) of this subpart, including those who have been excused from immunization under section 66-1.3 (c) or (d) of this Subpart.

(b) The exclusion shall continue until the commissioner determines that the danger of transmission has passed or until the documentation specified in section 66-1.3(a) or (b) of this Subpart has been submitted.

The families challenged the state’s right to question how sincerely a religious belief is held, as well as the social distancing law. They argued that the inquiry into their religious beliefs, and their exclusion from school any time a classmate is stricken by a VPI, violated their freedom of religion rights under the First Amendment to the Constitution, and their Ninth and Fourteenth Amendment due process and equal protection rights. They also claimed that the law violated the religious liberty provisions of the New York State constitution and state Human Rights Laws protecting equal access to public accommodation (although the cited provisions of that law, interestingly enough, does not include religious beliefs in its list of protected populations, so I’m not sure what grounds they were using).

Judge William F. Kuntz, II, in upholding the state’s motions to dismiss, makes a strong argument in favor of state public health powers. Dismissing the First Amendment claims, he cites the landmark Jacobson v. Massachusetts case, writing:

Plaintiffs argue that the vaccination program at issue denies their children the constitutional right to free exercise of religion, but not only has the Supreme Court strongly suggested that religious objectors are not constitutionally exempt from vaccinations, Jacobson v. Commonw. of Mass., 197 U.S. 11, 35–39, 25 S.Ct. 358, 49 L.Ed. 643 (1905), courts in this Eastern District have resolutely found there is no such constitutional exemption. In Caviezel v. Great Neck Public Schools, under nearly identical facts and citing Jacobson, the court held that “the free exercise clause of the First Amendment does not provide a right for religious objectors to be exempt from New York’s compulsory inoculation law.” 739 F.Supp.2d 273, 285 (E.D.N.Y.2010) (Spatt, J.) aff’d, 500 F. App’x 16 (2d Cir.2012), cert. denied, ––– U.S. ––––, 133 S.Ct. 1997, 185 L.Ed.2d 866 (U.S.2013). Similarly, in Sherr v. Northport–East Northport Union Free School District, the court explicitly held that no constitutional right to religious exemptions exists and found that the statutory exemption New York provides “goes beyond what the Supreme Court has declared the First Amendment to require.” 672 F.Supp. 81, 88 (E.D.N.Y.1987) (Wexler, J). Although Plaintiffs opine that Jacobson is bad law and ask this Court to overturn the Supreme Court decision, “this the Court cannot do.” Caviezel, 739 F.Supp.2d at 285.

In knocking down the families’ Substantive Due Process claims, Judge Kuntz states that “New York’s vaccine program is well within the State’s police power and thus its constitutionality is too well established to require discussion.” He is similarly unmoved by their equal protection claims, noting the state law does not favor any one religion over another, and that the parents failed to describe how they constitute part of a protected class.

New York state will be strengthening these public health protections further in the very near future. Effective July 1, 2014, new school attendance regulations will go into effect expanding the range of VPIs that may trigger an exclusion order to also include varicella (chicken pox), Haemophilus influenzae type b (Hib), pertussis (whooping cough), tetanus, pneumococcal disease, and hepatitis B. The new regulations also expand the number of public health officials who may order schools to exclude at risk students from attendance during outbreaks. Finally, the amended New York State regulations will require that schools keep track of the population of VPI-susceptible children in their care:

(c) Schools must maintain a list of susceptible students who should be excluded from attendance in the event of an outbreak of vaccine preventable disease. This list must include all students who have been excused from immunization under section 66-1.3 (c) or (d) of this Subpart and students who are in the process of completing immunization series or awaiting the results of serologic testing for any vaccine preventable disease specified under section 66-1.3 (b). The list shall be updated each time a new student enrolls in the school or a student’s immunization status changes.

While challenges may be made to the breadth of state public health laws, and it is likely that existing and future state vaccine policies will continue to face similar challenges, this case affirms the long-held doctrine that the state can draw upon its police powers in ways that may override individual religious and/or parental choices, and may somewhat burden individuals, to uphold our responsibility as a society (not as a collection of individuals) to use reasonable measures to protect against infectious disease outbreaks.